WASHINGTON (Circa) — Although House Speaker Paul Ryan, R-Wis., downplayed a White House threat to revoke the security clearance of six former Obama administration officials, national security attorneys warned that any attempt by President Donald Trump to penalize those officials may have chilling consequences.
“I think he’s just trolling people, honestly,” Ryan said at a press conference, though he added the decision is outside the jurisdiction of Congress.
“This is something that's in the purview of the executive branch,” he said. “I think some of these people have already lost their clearances. Some of them keep their clearances. That's something that the executive branch deals with. It's not really in our purview.”
Ryan was responding to comments made by White House Press Secretary Sarah Sanders Monday confirming that the president is “exploring the mechanisms” to revoke security clearance from former intelligence and law enforcement officials who have been critical of the president.
Specifically, the president is reviewing the clearance of former CIA Director John Brennan, former FBI Director James Comey, former CIA Director Michael Hayden, former Director of National Intelligence James Clapper, former Deputy FBI Director Andrew McCabe, and former National Security Adviser Susan Rice. All six have been vocal critics of the president, his behavior, and his policies.
Sanders justified this step, apparently spurred by a request from Sen. Rand Paul, R-Ky., by claiming the officials “politicized and, in some cases, monetized their public service and security clearance.” She singled out Brennan for calling Trump’s conduct during his summit with Russian President Vladimir Putin in Helsinki “treasonous.”
As Ryan’s reaction suggested, though, it is not entirely clear how much serious exploration of these mechanisms the White House has done. Spokespeople for two of the officials named, Comey and McCabe, said they no longer have clearance anyway, and the administration offered no evidence of any of the six officials misusing their clearances.
National security law experts say it is common for top officials to retain eligibility for security clearance after leaving government, even if they opt not to exercise it.
“It’s a longstanding tradition to allow top former intel officers to retain clearance, partly as a courtesy to them and partly because they often get consulted,” said Claire Finkelstein, director of the Center for Ethics and the Rule of Law at the University of Pennsylvania Law School.
There are many reasons security clearance has been revoked from former officials in the past, but publicly insulting the president has never been one of them. After CIA Director John Deutch left the agency in 1996, his clearance was suspended for mishandling classified information when top secret documents were discovered on his home computer. He pleaded guilty to a misdemeanor and was later pardoned by President Bill Clinton, and his clearance was ultimately restored in 2007.
Finkelstein listed several common justifications—questionable financial activities, undisclosed personal information, or engaging in activities incompatible with having clearance—and stressed no claims of such concerns have been raised about the former Obama officials in question.
“None of them really fit the profile of someone who would get their security clearance revoked,” she said.
NEW: On AF1, WH spox Hogan Gidley says Trump has "begun the mechanism" to remove security clearances from the six former national security officials named Monday.— Peter Alexander (@PeterAlexander) July 24, 2018
Yesterday, the WH said Trump was only "exploring the mechanisms."
According to Mark Zaid, an attorney who specializes in national security matters, other reasons include drug or alcohol use, arrests, mental health issues, or relationships with foreign nationals. He noted one of 13 guidelines for clearance does require “allegiance to the United States,” but that is typically understood to mean not advocating the violent overthrow of the government.
“I’m not aware of any precedent that clearance was ever denied or revoked based on political views or speaking out publicly against an administration,” Zaid said.
Previous administrations have brushed back occasional sniping from former intelligence officials without threatening their clearance. George W. Bush administration officials appeared on cable news throughout Obama’s presidency and at times were highly critical.
The Obama administration made no effort to take clearance away from former Defense Intelligence Agency head and future Trump National Security Adviser Michael Flynn when he was operating a profitable consulting business, traveling the country bashing the president, and leading chants to lock up the Democratic presidential nominee.
“If political bias is a basis for removing security clearance, then one needs to be even-handed about that,” Finkelstein said.
The president has extremely wide authority on security clearance matters, and former officials might not have a viable legal recourse if Trump followed through on the threat. National security attorney Bradley Moss laid out several ways that could play out in a Lawfare post Monday.
Normally, such matters would be handled by whatever agency sponsors the former official’s continued clearance. A memo would be issued detailing the justification for revoking clearance, and the official would allowed two levels of administrative appeals. The head of the agency can overrule that right to appeal on national security grounds.
Both of those options would require FBI or NSA officials to sign off on a reason for taking away clearance, and saying mean things about the president on TV may not be enough. The president could instead use his constitutional executive authority to unilaterally revoke clearance eligibility, a move that would almost certainly invite legal challenges.
Moss notes there is no precedent for a president using Article II powers in this way or for how the courts might rule on it. However, judges have historically claimed little to no power over the substance of security clearance decisions.
Allies of the president have defended the prospect of revoking clearance from those who criticize the administration.
“I think there’s a great danger to having talking heads on TV who are ex-CIA agents and still have classified clearance. There’s a real danger they might inadvertently reveal classified information,” Paul told Fox News Monday night.
Paul specifically referenced a 2012 incident in which Brennan briefed former officials on how to respond in media appearances to the leak of a classified counterterrorism operation to the Associated Press. At the time, critics accused him of improperly disclosing the use of an inside source within a terrorist cell, but the White House maintained he revealed nothing classified.
“I don’t think that ex-CIA agents of any stripe who are now talking heads should continue to get classified information. I think it’s wrong,” Paul said.
Tom Fitton, president of conservative watchdog group Judicial Watch, told Fox’s Sean Hannity that revoking clearance for Comey and McCabe after they were fired from the FBI should be a “no-brainer,” but he accused Clapper, Brennan, and Rice of lying or leaking as well.
“The basis for pulling a security clearance is credible derogatory information, and it’s hard to say there’s no credible derogatory information,” Fitton said.
Zaid, who has represented many clients in security clearance disputes, said he has seen no evidence the former officials have mishandled classified information or revealed classified information in their criticism of Trump. However, accusations of leaking or dishonesty that would merit revoking clearance could conceivably be lodged against most of them for things they have said or done.
“It’s not too difficult to take action against someone’s clearance and come up with an allegation and then require them to respond through the appeal process,” he said. “I firmly believe people have their clearance retaliated against all the time.”
Jim Hanson, president of the Security Studies Group, argued in a Fox News op-ed that Trump is merely reacting to the political activities of members of the “disloyal opposition” who have proven they cannot be trusted. As such, they can no longer be counted on to provide the kind of assistance former officials retain clearance to offer.
“Taking security clearances from those who have professed to be actively hindering the president’s lawful conduct of the country’s business is a sad, but necessary, step,” he wrote.
Hanson alleged such people are placing personal enmity above what should be shared goals of securing the country.
“They could provide the useful counsel their previous positions made them privy to and help the Trump administration. Instead, they call names and smear the president on social media,” he wrote.
Let’s be clear why fmr. officials keep their security clearances — ENTIRELY for our security as it allows current nat’l sec. officials to consult w/ experts. By revoking clearances, @realDonaldTrump makes you less safe. But he doesn’t care about you, just his fragile ego.— Rep. Eric Swalwell (@RepSwalwell) July 24, 2018
Others found that argument problematic.
“If opposing the administration becomes a basis for not having a security clearance, we’ve moved over into the territory of the state attacking political dissidents,” Finkelstein said. “That’s where we don’t want to be.”
According to Zaid, most people who obtain security clearance take that responsibility very seriously, and personal differences with the president would not change that.
“People really place a different perspective on the loyalty they have to the United States. In the security environment, country comes first,” he said.
While the level of invective hurled against this administration by former intelligence officials who served under both Democrats and Republicans is highly atypical, so is the current president’s rhetoric about the intelligence community, which he once equated to “Nazi Germany.”
Intelligence agencies should never have allowed this fake news to "leak" into the public. One last shot at me.Are we living in Nazi Germany?— Donald J. Trump (@realDonaldTrump) January 11, 2017
“It’s an incredibly valid point to say we have not previously seen senior intelligence and law enforcement officers speak out so publicly against a sitting president,” Zaid said, “but we have not seen a president like this either.”
Trump’s claims of “illegal” spying directly relate to work overseen by officials like Brennan and Comey, and he has at times leveled accusations of criminal activity against them personally, including outright calling for Comey to be jailed. Many of their public comments can be seen as defending themselves and their former colleagues against his attacks.
“The president has shown he will regard any concerns about engagement with Russia for any member of his staff or administration as an attack on him,” Finkelstein said. “Intelligence officers know the president will not do the right thing when it comes to engagement with Russia.”
As was the case after the Helsinki summit, former officials have also spoken out at times in reaction to the current president casting doubt on the intelligence community’s findings, snubbing traditional allies, or showering praise on authoritarian dictators.
“Extraordinary times call for extraordinary measures,” Finkelstein said.
Many have also taken issue with this White House accusing others of monetizing public service or politicizing intelligence. President Trump often tweets unsubstantiated attacks on the “deep state” and he is regularly accused of trying to profit off his presidency, but Sanders rejected the suggestion that Trump has politicized national security.
“The president is not making baseless accusations of improper contact with a foreign government and accusing the president of the United States of treasonous activity when you have the highest level of security clearance, when you’re the person that holds the nation’s deepest, most-sacred secrets at your hands, and you go out and you make false accusations against the president of the United States,” she said Monday.
Trump has repeatedly made baseless accusations against former President Barack Obama, such as that he had “wires tapped” Trump Tower or made “totally illegal” concessions to Iran, so experts remain skeptical of that stance.
Terrible! Just found out that Obama had my "wires tapped" in Trump Tower just before the victory. Nothing found. This is McCarthyism!— Donald J. Trump (@realDonaldTrump) March 4, 2017
“This is really a punishment and a vindictive move by the president based on political disagreements,” Finkelstein said.
Although Zaid deemed it “entirely inappropriate” for the administration to retaliate against critics in this way, he also cautioned against becoming too comfortable with the president’s opponents violating norms of political conduct in response to Trump’s aberrant behavior.
“This administration is just so different from anything we’ve ever seen in modern times,” Zaid said. “While that may be true, the thing we have to be careful about, especially in national security, is that we don’t set precedents that prove to be harmful going forward.”